PILKVIST & COBURN (DECEASED)

[2020] FamCAFC 204

FAMILY COURT OF AUSTRALIA

PILKVIST & COBURN (DECEASED) [2020] FamCAFC 204

FAMILY LAW – APPEAL – DE FACTO RELATIONSHIPS – Challenge to the primary judge’s declaration that a de facto relationship never existed between the appellant and the deceased – Where the appellant contends that the primary judge demonstrated bias – Where the primary judge was not biased – Adequate reasons for judgment – Weight challenges – Where the primary judge’s findings were open on the evidence – Appeal dismissed – No order as to costs.

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Adduce further evidence – Where some of the evidence sought to be adduced is not admissible – Where the evidence sought to be adduced is of limited weight – Where the evidence sought to be adduced would not produce a different result if it was taken into account – Application dismissed.

Family Law Act 1975 (Cth) ss 4AA, 90RD, 90SM, 117(2A)

Succession Act 1981 (Qld)

Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148
CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67
Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55
Cuan & Kostelac (2017) FLC 93-801; [2017] FamCAFC 188
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110
Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128; [2016] NSWCA 88
Sinclair & Whittaker (2013) FLC 93-551; [2013] FamCAFC 129
Sun Alliance Insurance Ltd v Massoud [1989] VR 8

APPELLANT: Ms Pilkvist

RESPONDENTS: Mr Coburn (Deceased) by his legal personal representatives Ms Coburn and Mr E

FILE NUMBER: BRC 2525 of 2009

APPEAL NUMBER: NOA 88 of 2019

DATE DELIVERED: 19 August 2020

PLACE DELIVERED: Sydney

PLACE HEARD: Brisbane (via videolink)

JUDGMENT OF: Aldridge, Austin & Tree JJ

HEARING DATE: 27 July 2020

LOWER COURT JURISDICTION: Family Court of Australia

LOWER COURT JUDGMENT DATE: 6 September 2019

LOWER COURT MNC: [2019] FamCA 635

REPRESENTATION

THE APPELLANT: Self-represented

COUNSEL FOR THE RESPONDENTS: Mr Galloway

SOLICITOR FOR THE RESPONDENTS: Peter J Sheehy Solicitor

Orders

1. The Application in an Appeal filed on 10 January 2020 be dismissed.

2. The appeal be dismissed.

3. There be no order as to costs.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Pilkvist & Coburn (Deceased) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE

Appeal Number: NOA 88 of 2019
File Number: BRC 2525 of 2009

Ms Pilkvist

Appellant

And

Mr Coburn (Deceased) by his legal personal representatives Ms Coburn and Mr E

Respondents

REASONS FOR JUDGMENT

Introduction

1. On 6 September 2019, a judge of the Family Court of Australia made a declaration pursuant to s 90RD of the Family Law Act 1975 (Cth) (“the Act”) that a de facto relationship between Ms Pilkvist (“the appellant”) and Mr Coburn (“the deceased”) never existed.

2. The appellant now appeals against that declaration. The appeal is opposed by the legal personal representatives of the deceased.

3. In order to understand the appeal, it is necessary to place the appellant’s submissions in the relevant historical context.

Background

1. The deceased was a quadriplegic and required assistance with his day to day care. In 1993, he placed an advertisement seeking a live in carer. He proposed to provide free accommodation, board and a discretionary payment to the live in carer. The appellant responded to the advertisement and was engaged in the position until July 2014, which was when the deceased moved into a nursing home.

2. The issue before the Court was whether the appellant simply remained as the deceased’s carer or, as she contended, a de facto relationship rapidly formed between them.

3. It was not in dispute that from 1993 until July 2014, the appellant lived in the deceased’s house and provided him with the necessary care. Each week the appellant received a payment from the deceased (initially in the sum of $1,200 per week, then $1,500 per week and increasing to $1,850 per week for a period in 2014), which was used by her to buy food and other household supplies. The appellant was free to retain the balance for her own use, which she did.

4. On 23 March 2009, the appellant brought a claim under s 90RD of the Act seeking a declaration that she and the deceased had been in a de facto relationship from 1993 until 14 March 2009, at which time she asserted that they had separated but continued to live in the same house. The appellant also sought a division of property pursuant to s 90SM of the Act.

5. The appellant’s evidence in the proceedings before the primary judge was that she had been persuaded to bring the proceedings in 2009 by the deceased’s lawyer as a means of obtaining funds from the deceased to purchase furniture and appliances for the deceased’s home (Appellant’s affidavit filed on 29 June 2016, paragraph 38–46).

6. On 20 October 2009, the appellant’s claim was resolved by consent and a payment of $400,000 was made to her pursuant to a Deed of Settlement. A declaration was also made that a de facto relationship had never existed between the appellant and the deceased.

7. The declaration made on 20 October 2009 is of some significance because if the relationship between the deceased and the appellant, whatever its nature, continued in the same way without change after October 2009, it must logically follow that it too was not a de facto relationship.

8. The evidence called by the appellant before the primary judge, however, did not suggest that there was any significant change in the nature of the relationship between her and the deceased after October 2009. It must be said, however, that much of that evidence was in general terms and often did not say whether the events described took place before or after that date. The general tenor of the evidence was that the arrangements within the deceased’s household remained much as they were, although his health deteriorated.

9. Notwithstanding the proceedings in 2009 and the subsequent resolution of them, the appellant continued to live in the deceased’s house, other than for a few days immediately after the settlement.

10. The appellant said that from the settlement payment that she received from the deceased, she spent $4,500 replacing the carpet in the deceased’s house and $4,500 on a sofa bed in 2011, and purchased a hospital adjustable bed probably around 2011 or 2012. Confusingly, she also deposed that she saved money from the weekly payments that she received from the deceased to enable her to purchase furniture (Appellant’s affidavit filed on 29 June 2019, paragraph 46).

11. On 23 July 2014, the deceased was removed from his house by a number of people who held an enduring power of attorney for him and taken to hospital. He was moved to a nursing home a few days later.

12. The appellant was evicted from the deceased’s house on 26 July 2014.

13. A temporary protection order was made against the appellant for the protection of the deceased on 24 July 2014. On 17 November 2014, a final protection order was granted for the protection of the deceased for a period of two years.

14. The Public Guardian was appointed as the guardian of the deceased on 24 October 2014 as to accommodation, healthcare, provision of services and the application for protection orders. The Public Guardian also made decisions in relation to contact between the appellant and the deceased, which included authorising supervised visits with conditions and then ultimately barring contact altogether. On the same day, the Public Trustee of Queensland was appointed as administrator over most of the deceased’s financial affairs. On 4 January 2016, the Queensland Civil and Administrative Tribunal dismissed the appellant’s application to be substituted as the person responsible for decisions concerning the deceased’s care.

15. The proceedings in the Family Court of Australia were recommenced on 29 June 2016. Initially, an order was sought to set aside the consent orders made on 20 October 2009, but that claim was withdrawn. The appellant then ultimately sought a declaration that a de facto relationship existed between the appellant and the deceased from 9 October 2009 until 6 December 2016. The appellant also sought a division of property pursuant to s 90SM of the Act.

16. At around the same time, the deceased by his then case guardian, applied to the Supreme Court of Queensland for the making of a statutory will in accordance with the Succession Act 1981 (Qld). The parties to those proceedings included the appellant, the deceased’s legal personal representatives, relatives of the deceased and other persons who had provided services to the deceased. The application for a statutory will was refused on 14 July 2017.

17. The deceased died in mid 2019.

The Appeal

1. The Notice of Appeal filed on 3 October 2019 raises 11 grounds of appeal. The appellant’s Summary of Argument filed on 27 February 2020 does not address those grounds of appeal individually and instead groups the appellant’s submissions under six headings, most of which have some connection to some of the grounds of appeal. In addition, the Summary of Argument asserts that the primary judge was biased.

2. We shall deal with the appellant’s submissions as grouped in the Summary of Argument. As the challenge raising bias goes to the integrity of the trial process itself, it must be addressed first (Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577 at [117] and Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128 at [9]–[10]).

Did the primary judge demonstrate bias?

1. The appellant relies on the following to establish that the primary judge demonstrated bias:

   ·The primary judge recorded that the appellant said that she can speak conversational English but had difficulty reading English documents and that the appellant’s counsel said that she understands English well (at [5]);

   ·Her Honour found that there was no evidence that the appellant had “any business experience or acumen” and described the appellant’s evidence that she was responsible for decisions to buy a mine and a quarry as an “embellishment of what was in reality a very limited role” (at [58]);

   ·The primary judge concluded that no de facto relationship had existed between the appellant and the deceased (at [61]) and the appellant contends that this was her Honour’s mindset throughout the proceedings; and

   ·The appellant contends that the primary judge threatened the appellant and her lawyers with cost orders against them if the appellant could not establish that the relationship had broken down.

2. It is axiomatic that a case “must be decided by an independent and impartial tribunal” (Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 (“Ebner”) at [22]). A lack of impartiality is, however, not demonstrated simply by a finding adverse to the aggrieved party. It is, after all, the essential function of a judge to decide on the competing contentions of the parties. This is sufficient to dispose of the appellant’s contentions that the primary judge was biased but, as we shall briefly explain, there is not even a suggestion of an appearance of the primary judge deciding the case other than on its merits (Ebner at [8]).

3. The comments made by the primary judge as to the appellant’s fluency in English were made in the introduction of the reasons for judgment and in an effort to reconcile the various statements made by the appellant, as to her ability to understand both written and spoken forms of English, that appeared in different places in her evidence. We can detect no findings of fact that flow from such comments.

4. As the appellant correctly points out, a person does not need to have a business degree or impeccable English to help their partner conduct their business. That, however, is not the point. It was accepted that the appellant assisted the deceased by writing cheques, driving him to his places of business, collecting rent for him and the like, however, her Honour was entirely correct to say that the evidence did not go beyond that. Whilst the appellant did assert, in general terms, that she played a greater role in the deceased’s business to the extent of making significant decisions, the evidence of the deceased’s lawyer, which was accepted by her Honour, was that it was the deceased himself who directed the course of the business operations. The primary judge’s finding of embellishment was, therefore, open on the evidence.

5. Contrary to the submissions of the appellant, the primary judge’s conclusion that her Honour was satisfied that the appellant and the deceased “did not have a relationship as a couple living together on a genuine domestic basis from 9 October 2009 (or 20 October 2009) until 6 December 2016 or subsequent thereto” (at [61]) came at the end of the case in the written reasons for judgment and at the very end of the discussion of the issues. That is not evidence of a mindset throughout the proceedings.

6. Finally, in her evidence, including her oral evidence, the appellant insisted that the relationship between herself and the deceased had never broken down and it continued until the deceased’s death, despite the removal of the deceased from his home into a nursing home and the protection order made against the appellant which, she said, occurred against the wishes of the deceased. Had this been the case, difficulties would have arisen with the appellant’s claim for a property settlement because s 90SM of the Act operates only where there has been a breakdown of the de facto relationship.

7. The primary judge raised this issue with counsel for the appellant at the end of the first day of the hearing, during which the appellant gave the evidence to which we have just referred. The exchange concluded with the following:

   HER HONOUR: I mean in the circumstance if you can’t establish - - -

   [COUNSEL FOR THE APPELLANT]: Yes.

   HER HONOUR: - - - that there has been a breakdown of the relationship, if you can’t establish that 90SM(1) applies, then there may be cost consequences, and, of course, they may be personal - - -

   [COUNSEL FOR THE APPELLANT]: I understand.

   HER HONOUR: - - - to you and your solicitor.

   [COUNSEL FOR THE APPELLANT]: Yes, I understand, your Honour.

   HER HONOUR: So I will look forward to hearing your submissions tomorrow…

   [COUNSEL FOR THE APPELLANT]: Thank you.

   (Transcript 1 August 2019, p.126 lines 5–22)

8. Here, the primary judge was pointing out what may have been a significant flaw in the appellant’s case, which should have been apparent to her lawyers. If the case failed for that reason, cost consequences could well follow. Her Honour was merely pointing out the obvious.

9. This challenge does not succeed.

Were the primary judge’s reasons for judgment adequate? (Grounds 6 and 7)

1. The appellant submits that her Honour’s reasons are inadequate because there was no explanation as to why 14 documents exhibited to the appellant’s affidavit filed on 1 July 2019 were removed and there was no reference to the appellant and the deceased keeping pets or photographs from birthday parties in the reasons for judgment. Further, as is apparent from the appellant’s Summary of Argument, taken as a whole, the appellant submits that proper regard was not given to the evidence of a number of witnesses called by her.

2. The first point is misconceived. At the commencement of the hearing, the primary judge took up with counsel for the appellant the large number of documents exhibited to the appellant’s affidavit filed on 1 July 2019. After counsel for the appellant conceded that many of the documents were not relevant to the issues before the Court, the primary judge directed that they be removed from the exhibit (Transcript 1 August 2019, p.10 line 10 to p.16 line 32). As there were concessions made that the documents had no utility, her Honour was not obliged to give any reasons for the course taken.

3. As to the remaining points, the obligation to give reasons is well known. In Bennett and Bennett (1991) FLC 92-191 at 78,266–78,267, the Full Court of the Family Court of Australia adopted the principles expounded in Sun Alliance Insurance Ltd v Massoud [1989] VR 8, saying:

   In Sun Alliance Insurance Ltd v Massoud (1989) VR 8, the Full Court of the Supreme Court of Victoria, consisting of Fullagar, Gray and Tadgell JJ, followed the principles established by the New South Wales Court of Appeal. Gray J, who delivered the principal judgment, said, at 18:

   “The adequacy of the reasons will depend upon the circumstances of the case. But the reasons will, in my opinion, be inadequate if: —

   (a)the appeal court is unable to ascertain the reasoning upon which the decision is based; or

   (b)      justice is not seen to have been done.

   The two above stated criteria of inadequacy will frequently overlap. If the primary Judge does not sufficiently disclose his or her reasoning, the appeal court is denied the opportunity to detect error and the losing party is denied knowledge of why his or her case was rejected.”

   We think that the test propounded by Gray J is a particularly useful one, and one which also applies to discretionary judgments. In Maday and Maday (1985) FLC 91-636, Fogarty J, in a judgment with which the other members of the Court (Emery and Murray JJ) agreed, took the view that these principles clearly did apply to discretionary judgments and, in particular, judgments in custody matters.

4. In Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110, the New South Wales Court of Appeal said:

   57.The giving of adequate reasons lies at the heart of the judicial process.  Failure to provide sufficient reasons promotes “a sense of grievance” and denies “both the fact and the appearance of justice having been done”, thus working a miscarriage of justice.

   58.The extent and content of reasons will depend upon the particular case under consideration and the matters in issue. While a judge is not obliged to spell out every detail of the process of reasoning to a finding, it is essential to expose the reasons for resolving a point critical to the contest between the parties.

   59.The reasons must do justice to the issues posed by the parties’ cases. Discharge of this obligation is necessary to enable the parties to identify the basis of the judge’s decision and the extent to which their arguments had been understood and accepted… it is necessary that the primary judge “ ‘enter into’ the issues canvassed and explain why one case is preferred over another”.

   (Citations omitted)

5. As can be seen, the reasons for judgment must be responsive to the issues in the proceedings and the submissions that were made.

6. Counsel for the appellant made very limited oral submissions and, in the main, relied upon written submissions consisting of just six pages which were handed to the primary judge.

7. There is no reference to pets in the appellant’s submissions other than to the evidence of the appellant’s son, although made in the context of submissions as to the duration of the relationship between the appellant and the deceased and not its nature, as follows:

   6.[The appellant] visited us in Sydney late October 2009. She drove down with the [pets] but stayed for only a short time. She said [the deceased] contacted her to return home.

   (Mr Pilkvist’s affidavit filed on 3 July 2019) (As per the original)

8. This paragraph was not the subject of an objection by the respondents, however, in the course of oral submissions at the hearing before the primary judge, the following exchange occurred:

   HER HONOUR: So he was introduced to [the deceased] in 1994:

   I have always acknowledged them as a couple. [The appellant] visited us in Sydney in 2009, drove down with the [pets] but only stayed a short time. [The appellant] arrived a day before the wedding and it turns out –

   Right. So what, in any of that, corroborates, or indeed, gives any evidence [of] a finding of a de facto relationship?

   [COUNSEL FOR THE APPELLANT]: In the second sentence, your Honour:

   I’ve always acknowledged that [the appellant] and [the deceased] are a couple.

   HER HONOUR: Well, he may have. Yes, [counsel for the respondents]?

   [COUNSEL FOR THE RESPONDENTS]: Your Honour, I do, some degree unusual, arise in my friend’s submissions.

   HER HONOUR: Yes.

   [COUNSEL FOR THE RESPONDENTS]: I apologise.

   HER HONOUR: That was struck out, was it?

   [COUNSEL FOR THE RESPONDENTS]: That, I thought, had been struck out by concession.

   HER HONOUR: Yes. There you are. Yes. So it’s not in evidence before me…

   [COUNSEL FOR THE APPELLANT]: Yes, your Honour.

   (Transcript 2 August 2019, p.171 line 34 to p.172 line 15) (As per the original)

1. The evidence read out by her Honour was not a paragraph from the appellant’s son’s affidavit but a selection of sentences from a number of paragraphs from it, not all of which had been objected to by the respondents. It is tolerably clear, nonetheless, that the comments made by counsel for the respondents and those of the primary judge as to what was not in evidence, were limited to the witness’s acknowledgment of the appellant and the deceased as a couple and not the other evidence read out by her Honour.

2. The only other evidence on the issue came from a housekeeper engaged by the appellant in 2012. She said:

   4.I was also in charge of taking care of plenty of birds [the appellant] and [the deceased] owned. Annexed hereto and marked Exhibit G01 are pictures of the birds. [The deceased] and [the appellant] took pleasure in the having the birds [sic]. They also have [pets] but [the appellant] feeds and took care of them [sic].

   (Ms G’s affidavit filed on 24 July 2019) (Emphasis removed)

3. This snippet of evidence was not referred to in the appellant’s submissions. Given the fleeting nature of the evidence and the fact that no submissions were made to the effect that the keeping of pets or birds pointed to a de facto relationship, it is entirely unsurprising that the primary judge did not refer to it. No error by the primary judge is identified.

4. Contrary to the appellant’s submissions, her Honour did refer to the photographs from birthday parties, saying:

   56.The [appellant] relies upon a number of photographs depicting (I assume) [the deceased] and herself with other people, apparently celebrating birthdays and the like. She also relies upon a number of cards sent by family and friends addressing them both. The fact that [the deceased] and the [appellant] celebrated birthdays and special occasions is hardly surprising given the longevity of their association. Likewise, the receipt of cards mentioning them both.

5. Finally, the appellant called in aid evidence from five witnesses which she said supported her case. Much of their evidence was struck out after it was conceded to be inadmissible.

6. The primary judge discussed the evidence of the witnesses in the following terms:

   60.The witnesses relied upon by the [appellant] in support of her case are of little, if any, forensic significance. Either they repeat what the [appellant] has told them or their observations do little to assist the [appellant] in meeting her evidentiary onus. For example, it would not be surprising if the [appellant’s] friends attended at the home to celebrate [the deceased’s] birthdays when it seems he had no friends of his own and the [appellant] had been his carer for so many years. Nor is there anything about their observations which would establish in any persuasive way that the nature of the relationship between the [appellant] and [the deceased] was one of de facto partner rather than carer and patient e.g. it would be unsurprising to see a level of familiarity or even affection between two people who had shared a home for such a long time and for whom the [appellant] provided the most intimate of care.

7. Nonetheless, the appellant asserts that the reasons for judgment did not address important aspects of the witnesses’ evidence. In particular, she refers to the evidence of Ms P and Ms R as to discussions that they had with the appellant about her sex life with the deceased.

8. The primary judge found that the appellant and the deceased did not have a sexual relationship. Her Honour said:

   49.The [appellant’s] evidence of an ongoing sexual relationship is at odds with a statement she had written titled – ‘The Story of my Life and of [the deceased]’ where she had referred to “sexual absence” and “the sexual part was not even in my mind as I was too busy caring for him to even think of sex”. Her attempt to explain the inconsistency was far from convincing.

   50.According to Mr [J], who was a frequent visitor to the home, [the deceased] and the [appellant] had separate bedrooms. His evidence was not challenged and I accept it.

   51.Given the inconsistencies in the [appellant’s] evidence and the evidence from Mr [J], I reject the [appellant’s] evidence that she and [the deceased] had a sexual relationship.

9. The difficulty facing the appellant is that the two conversations deposed to by Ms P and Ms R, on which she relies, took place in about July 1994 (Ms P’s affidavit filed on 1 July 2019, paragraph 3) and “the early 90’s” (Ms R’s affidavit filed on 3 July 2019, paragraph 9). This was, of course, during the period of time covered by the declaration made by consent that a de facto relationship had never existed between the appellant and the deceased. The relevance of these conversations to the period of October 2009 until December 2016 is questionable.

10. The primary judge recognised this by saying:

    46.The declaration made with the consent of the parties on 20 October 2009 stands i.e. up to that date a de facto relationship never existed. There is no application to set the declaration aside. So the question for determination is whether or not the relationship between the [appellant] and [the deceased] can be characterised as a de facto relationship from 9 October 2009 until 6 December 2016, or indeed any other dates given that the determination of whether or not a de facto relationship existed is one for the Court.

    (Footnote omitted)

11. Further, the evidence of these witnesses was, at least as to this aspect of the case, to record what the appellant had told them, as opposed to what they, themselves, saw or heard. The primary judge noted that aspect of their testimony at [60], which we have quoted above. It is reasonably clear, therefore, that the primary judge had the evidence of all of the appellant’s witnesses in mind but, as is apparent from the reasons quoted above, her Honour gave other evidence greater weight.

12. Finally, and again contrary to the appellant’s submissions, as we have said earlier, her evidence and that of her witnesses as to the appellant’s involvement in the deceased’s business was in part accepted (at [58]).

13. Thus, the reasons for judgment are not lacking and it is also apparent that the primary judge did have regard to all of the evidence.

14. We are not satisfied that any error by the primary judge has been demonstrated.

Did the primary judge err by failing to find that a de facto relationship existed between the appellant and the deceased from October 2009 to December 2016? (Grounds 1 to 4 and 8 to 11)

1. It is convenient to deal with these grounds of appeal together as, although the appellant’s Summary of Argument grouped them under three different headings, the point sought to be made is the same – namely, that the evidence called by the appellant did establish a de facto relationship between the appellant and the deceased from October 2009 to December 2016, and that the finding of the primary judge to the contrary, was wrong.

2. Grounds 9 and 10 again raise the removal of documents from the exhibit to the appellant’s affidavit filed on 1 July 2019 and suggests that their removal affected the outcome. As we have already discussed, no error by the primary judge was involved in the removal of any irrelevant documents from the exhibit and we shall say no more about these grounds of appeal.

3. Ground 11 simply asserts that the appellant suffered a substantial injustice “in view of the [r]easons for [j]udgment” and does not identify any error.

4. In the appellant’s submissions under the remaining grounds of appeal, the appellant essentially puts two contentions. First, the appellant discussed each aspect of the definition of a de facto relationship given by s 4AA of the Act and referred to the evidence that she asserted established that aspect of the definition. Secondly, the appellant emphasised the evidence of the five witnesses that she called to support her case.

5. We have already discussed the difficulties that much of the appellant’s supporting evidence before the primary judge faced. A further difficulty is that the appellant’s submissions thus rely, in part, on evidence that was not before the Court because it was not pressed when objections were made to it (for example, parts of Ms T’s affidavit filed on 24 July 2019, which were quoted by the appellant). Therefore, much of the force of the submission is lost.

6. Section 4AA of the Act provides:

   Meaning of de facto relationship

   (1)A person is in a de facto relationship with another person if:

   (a)the persons are not legally married to each other; and

   (b)the persons are not related by family (see subsection (6)); and

   (c)having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.

   Paragraph (c) has effect subject to subsection (5).

   Working out if persons have a relationship as a couple

   (2)Those circumstances may include any or all of the following:

   (a)the duration of the relationship;

   (b)the nature and extent of their common residence;

   (c)whether a sexual relationship exists;

   (d)the degree of financial dependence or interdependence, and any arrangements for financial support, between them;

   (e)the ownership, use and acquisition of their property;

   (f)the degree of mutual commitment to a shared life;

   (g)whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship;

   (h)the care and support of children;

   (i)the reputation and public aspects of the relationship.

   (3)No particular finding in relation to any circumstance is to be regarded as necessary in deciding whether the persons have a de facto relationship.

   (4)A court determining whether a de facto relationship exists is entitled to have regard to such matters, and to attach such weight to any matter, as may seem appropriate to the court in the circumstances of the case.

7. The operation of this section was described in Sinclair & Whittaker (2013) FLC 93-551 in the following terms:

   51.In coming to the view that a couple had a relationship as a couple living together on a genuine domestic basis the court is to have regard to all of the circumstances of their relationship. Those circumstances may include those specified in ss 4AA(2).

   52.Sub-section 4AA(3) highlights that no particular finding in relation to any circumstance is to be regarded as necessary in deciding whether the subject persons have a de facto relationship.

   …

   54.Thus, whether or not a de facto relationship, as defined, exists will depend upon an assessment of all of the circumstances of the relationship, each to be given the weight the court thinks appropriate.

   55.In Lynam v Director-General of Social Security (1983) 52 ALR 128 at 131 said:

   Each element of a relationship draws its colour and its significance from the other elements, some of which may point at one direction and some in the other.  What must be looked at is the composite picture.  Any attempt to isolate individual factors and to attribute to them relative degrees of materiality or importance involves a denial of common experience and will almost inevitably be productive of error.  The endless scope for differences in human attitudes and activities means that there will be an almost infinite variety of combinations of circumstances which may fall for consideration. In any particular case, it will be a question of fact and degree, a jury question, whether a relationship between two unrelated persons of the opposite sex meets the statutory test.

   56.Many of the submissions put by the appellant in the appeal sought to place significant, if not determinative weight, on particular circumstances. Absent the identification of an error on the part of the trial Judge it is difficult for such submissions to succeed. Merely because another judge may have weighed the circumstances differently does not, of itself, demonstrate error.

8. Thus, as a factual finding, albeit one of evaluation and degree, “if the finding of a de facto relationship is open on the evidence then no error will be identified, even if other judges may have come to a different conclusion” (Cuan & Kostelac (2017) FLC 93-801 at [15]). Similarly, if the finding that no de facto relationship existed is one that properly can be made on the evidence, it does not establish error simply to suggest that another finding was also open or that different evidence should have been given greater weight.

9. The primary judge set out her Honour’s conclusions as to why there was no de facto relationship at [46]–[61] of her Honour’s reasons for judgment. Apart from [60] and [61], which we have already dealt with above, the appellant did not point to any error of fact or logical reasoning in these paragraphs. Rather, the appellant asserts that weight should have been given instead to other evidence. Indeed, in her Summary of Argument, the appellant took each aspect of the definition of a de facto relationship given by s 4AA of the Act in turn and pointed to the evidence that she called which she said supported a finding of a de facto relationship.

10. That evidence, to repeat, is subject to some difficulties – some was not in fact admitted into evidence and much referred to events up to 2009 or was based on what the appellant had told witnesses prior to 2009. One can understand why the primary judge afforded this evidence little weight.

11. The appellant’s submissions do not come to grips with the fact that there was other evidence in the proceedings to the contrary, which was accepted by the primary judge. No challenge was made to those findings.

12. In short, the appellant’s submission under these grounds of appeal was that, had different evidence been accepted or given weight, a different result would have ensued. That is not enough to establish error by the primary judge.

13. It is, however, sufficient to say, that a finding that there was no de facto relationship was one that was open on the evidence that was accepted by her Honour.

14. These grounds of appeal do not succeed.

Ground 5

1. It is not necessary to deal with Ground 5, which challenges the primary judge’s alternative finding that if a de facto relationship had existed, there was no evidence that it had broken down because the finding that there was no de facto relationship stands.

Application to adduce further evidence

1. The appellant seeks leave to rely on an affidavit of Ms V sworn on 16 December 2019 in the appeal. Ms V was a friend of the appellant with whom she had lost touch between 2014 and 2019.

2. The parts of Ms V’s affidavit that appear to bear directly on the issue in question are:

   ·At some time, probably in 2005, the deceased told Ms V that his “girlfriend/partner” was from Country Q (Ms V’s affidavit sworn on 16 December 2019, paragraph 3);

   ·In 2014, after his removal from his home into a nursing home, the deceased told Ms V that he wanted to marry the appellant and that she should be allowed to take him home. This evidence was prefaced with the words “during our conversation [the deceased] was able to remember [the appellant]”, which suggests that there may have been some loss of the deceased’s mental capacity, thus weakening the force of the evidence (Ms V’s affidavit sworn on 16 December 2019, paragraph 13–15);

   ·Everyone was aware at the nursing home that the appellant was the deceased’s partner (Ms V’s affidavit sworn on 16 December 2019, paragraph 21); and

   ·Ms V honestly believed that the deceased and the appellant “had a loving relationship over the 15 years … as evidenced by the hugs, kiss and general care” (Ms V’s affidavit sworn on 16 December 2019, paragraph 22) (As per the original).

3. The evidence supporting the last two points is the opinion of the deponent and therefore not admissible. The remaining two points are relevant but of limited weight. We are not satisfied that this evidence would produce a different result if it was taken into account (CDJ v VAJ (1998) 197 CLR 172 at [111]).

4. The Application in an Appeal filed on 10 January 2020 to adduce further evidence will accordingly be dismissed.

Conclusion and Costs

1. It follows that the appeal will be dismissed.

2. The respondents sought an order that the appellant pay their costs of the appeal. A schedule of costs was not filed by the respondents within the time provided by the Appeal Registrar’s directions, and unhelpfully, the schedule of costs sought to be filed and relied on at the hearing of the appeal claimed costs on a solicitor and client basis, even though indemnity costs were not sought.

3. The estate administered by the respondents has net assets in excess of $11 million. The evidence before the primary judge did not establish the appellant to have any significant means (at [25]–[26]).

4. Taking these matters into account (s 117(2A)(a) of the Act), the appropriate outcome is that there be no order as to costs.

I certify that the preceding seventy-six (76) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Aldridge, Austin & Tree JJ) delivered on 19 August 2020.

Associate:

Date:  19 August 2020